2316569 (Refugee)

[2024] AATA 605

2316569 (Refugee) [2024] AATA 605 (6 January 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2316569

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:  Peter Vlahos

DATE:  6 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 6th January 2024 at 8.47AM.

CATCHWORDS
REFUGEE – protection visa – Vanuatu – fear of harm from natural disasters – earthquakes and volcanoes – limited resources and inadequate infrastructure – not a refugee criterion – significant harm for complementary protection criteria requires act or omission by perpetrator – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vanuatu, applied for the visa on 7 September 2023. The delegate refused to grant the visa on the basis that it did not satisfy subsection 36(2) of the Act.

3. The applicant appeared before the Tribunal on 20 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s friend.

4. The applicant in these proceedings was not assisted by a registered migration agent or legal counsel and no interpreter was required nor requested.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations  

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Country of Nationality and identity

2. There is no evidence before the Tribunal that any of the documents provided to the Tribunal is a bogus document as defined in section 5(1) of the Act.

3. Further, based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal on file, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Vanuatu and has had its claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on that basis of this evidence (currently, before the Tribunal), the Tribunal accepts and finds that the applicant’s identity as is claimed for the purposes of this decision.

   Protection available in another country assessed

4. The Tribunal finds, on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than Vanuatu. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the Tribunal.

   Department File accessed by the Tribunal

5. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with her application to review.

   Background – the Applicant’s migration and visa history

6. The applicant arrived in Sydney, Australia [in] December 2020 from Vanuatu on a visa granting her entry in Australia, [and] on 7 September 2023 applied for a Protection visa which was refused by the Department but was granted its associated Bridging visa.

EVIDENCE BEFORE THE TRIBUNAL AT THE HEARING

1. The applicant was born [Date], in [Location], Vanuatu and is [Age] years of age. She is not married and not in in a relationship (currently). She received her basic education in Vanuatu, and speaks and writes Bislama and English. She records in her application that she is a ‘Christian’ but did not specify her religion’s denomination. The applicant recorded in her application that in Vanuatu she was ‘unemployed’ and her daily duties were to ‘care for her elderly parents.’ While in Australia, the applicant has been [working].

   The Applicant’s protection claims submitted to the Department and Tribunal[1]

   [1] see, Department of Home Affairs File no. [Reference]

2. The applicant’s claims for protection submitted to the Department and Tribunal are in summary as follows:

   §Vanuatu has been affected by a series of devastating natural disasters. The increasing frequency of these catastrophic events impacted the safety and well-being of the applicant and her family;

§The government of Vanuatu has not been able to respond effectively to the disasters due to limited resources and inadequate infrastructure. This has left the citizens of Vanuatu vulnerable and lacking in sufficient protection;

§The applicant feels the authorities may not have the capacity to ensure the applicant’s safety and well-being, and lacks confidence in the authorities’ ability to protect them;

§The applicant fears for their life and the lives of their family in the face of ongoing natural disasters. The applicant fears that earthquakes may cause building damage and injury, and fears that volcanic eruptions would create a significant risk to their personal safety, disrupt daily life, damage the environment, and pose health risks.

§The applicant does not claim to have experienced harm in Vanuatu.

1. It was noted on the applicant’s Department file, that the applicant was given the opportunity to provide all of the details of their protection claims. The application ‘Form’ that she completed informed her that she should provide ‘all of their claims for protection’ and ‘all documentation or other evidence’ to support their claims. The Department also informed the applicant that a decision could be made on the information provided in their application. On 8 September 2023, the applicant was sent an acknowledgement by the Department acknowledging that the applicant had submitted a valid application and also advised that she could provide additional information relating to her claims and how the applicant could provide this.[2] That correspondence also informed the applicant that a decision on her application could be made without another opportunity for her to present any further information relevant to her claims.

   [2] see, Department File, [Reference]

2. The applicant said that for substantial part of her life she and her family have lived in [Location].

3. The applicant said that life in Vanuatu was ‘difficult’. She told the Tribunal that she and her family ‘struggled to make a living.’

4. The applicant told the Tribunal that her home district was ‘surrounded by active volcanos’ which often emitted ‘dangerous gasses’ which made life ‘very difficult’ and ‘very dangerous’. At times, ‘volcanic ash’ would settle around her home and throughout her home area and this made the ‘atmosphere’ ‘difficult to live’.

5. The applicant told the Tribunal that in Vanuatu, she and her family lived under the constant threat of volcanos erupting and causing ‘huge problems’ in their lives.

6. The applicant said that the Vanuatu government and its local authorities, did not have the necessary infrastructure to provide ‘help’ and ‘assistance’ when natural disasters occurred in Vanuatu. This lack of infrastructure and support, according to the applicant, made ‘life difficult’ in Vanuatu.

7. The applicant told the Tribunal, that even though the threat of a natural disaster existed in Vanuatu, her family and relatives remain in her hometown.

8. The applicant described her mother as ‘elderly’ ([Age]-years-of-age) and her father as ‘deceased’. The applicant indicated that she had no other siblings.

9. While in Australia, the applicant has been [working] and supports her mother in Vanuatu with the money she earns in Australia.

10. Currently, the applicant told the Tribunal that she is working at a ‘[worksite]’ in ‘[Suburb]’.

COMMENTS FROM THE APPLICANT’S WITNESS, [Mr A]

1. The witness provided similar information (as provided by the applicant in her evidence) concerning the Vanuatu natural environment and how that causes issues to all people living in Vanuatu.

2. The witness then asked the Tribunal questions concerning the applicant’s Protection visa application and whether, the applicant had a ‘right’ to ‘protection’ because of the “climate change situation” as he believed existed in Vanuatu.

3. The Tribunal explained to the witness in the applicant’s presence, that the present legislative scheme as provided for in section 36(2)(a) and section 36(2)(aa) and the definition of ‘refugee’ as defined by section 5 of the Act did not provide for claims directly related to ‘natural disasters’ or the wider (internationally, evolving) issue of ‘climate change.’

4. The Tribunal told both the applicant and her witness, that in order to satisfy the criterion for a protection visa in section 36(2)(a) of the Act, an applicant must be a non-citizen in Australia in respect to whom a decision-maker (in this instance, the Tribunal) is satisfied Australia has protection obligations because the person is a refugee.

5. A ‘refugee’ as defined in section 5H(1) of the Act, is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The meaning of ‘well-founded fear of persecution’ is set out in section 5J of the Act and includes a requirement in section 5J(1)(a) of Act that the ‘person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

6. The Tribunal indicated to both the applicant and to her witness, that though the applicant may claim that she had experienced harm as a result of natural disasters having occurred in her country of origin, Vanuatu, such harm does not relate to any of the reasons in section 5J(1)(a) and there was no other reasons or evidence before the Tribunal to indicate and to suggest that the applicant would be subject to harm on her return to Vanuatu for one or more of the reasons provided in section 5J(1)(a) of the Act.

7. The Tribunal noted also to both the applicant and the witness, that similar considerations and conclusions applied in the instance when the turned its attention to the alternative criterion – complementary protection as provided for in the Act and in particular section 36(2)(aa).[3]

   [3] The Tribunal deals directly with the issue of section 36(2)(aa) in its reasons for decision later in this decision.

8. The Tribunal indicated to the applicant that if she required or thought it necessary to remain in Australia further, the Protection visa was not relevant visa but that she should consult immigration professionals to determine the appropriate visa to allow her to remain in Australia for a further period of time.

9. The applicant was told that the Tribunal could not provide any advice except to determine matters submitted to it for review and determination on the evidence submitted to the Tribunal to consider.

10. The applicant indicated to the Tribunal that she understood the proper function of the Protection visa application as was explained to her by the Tribunal.

COUNTRY INFORMATION_ VANUATU_ NATURAL DISASTERS_ APPLICATION OF INTERNATIONAL LAW

The information that follows is from the Department of Foreign Affairs & Trade Country Brief – Vanuatu and states the following:

1. Australia and Vanuatu have a strong and enduring bilateral relationship, based on shared values and interests in a prosperous and stable region.

2. Australia established a presence in Vanuatu in 1978 and championed the case for Vanuatu's independence in the United Nations and Pacific Forums in the lead up to independence in 1980. Australia opened a Consulate in 1978, followed by a High Commission in Port Vila in 1980 and in 2020 we celebrate 40 years of close diplomatic relations. Australia and Vanuatu enjoy a very broad range of links at government, business, and community levels. Australia's engagement aligns with Vanuatu's National Sustainable Development Plan 2030 and Australia's 2017 Foreign Policy White Paper. Australia is proud to be Vanuatu's largest bilateral aid donor and closest security partner.

3. Vanuatu is an archipelagic nation of 83 islands, extending over 1000 kilometres in a north- south direction between the equator and the tropic of Capricorn. It lies some 2000 kilometres to the northeast of Brisbane in the Coral Sea, at similar latitude to Cairns in North Queensland. The population of Vanuatu is approximately 299,882 (2019). Port Vila, on the island of Efate, is the capital. Formerly known as the New Hebrides, Vanuatu was jointly governed by British and French administrations before attaining independence.

4. Vanuatu has a unicameral 52-member parliament, elected to a four-year term by universal adult suffrage. The president of the republic (constitutional head of state) is elected for a five-year term through secret ballot by an electoral college comprising members of parliament and the presidents of Vanuatu's six provincial governments. The current President, His Excellency Nikenike Vurobaravu, was elected for a five-year term on 25 July 2022. The Prime Minister is elected by parliament from among its members by secret ballot. Following national elections on 13 October, the parliament elected the Hon Alatoi Ishmael Kalsakau, Prime Minister of Vanuatu on 03 November 2022.

5. The Tribunal has included here, a soundly written article authored by Morgaine Noel Ph.D.in Law, Trinity College, Dublin titled “International Law does not protect people fleeing environmental disasters – here how it could.” [4] The article explains how the law is currently not and how international law may in the immediate future change to allow claims for ‘protection’ being provided to those fleeing natural disasters created by “climate change.” What is telling from the reasoning provided Morgaine Noel is her conclusion that:

   [4] see, is-how-it-could

   Only the creation of an efficient international framework of laws can guarantee refuge for people fleeing such environmental disasters in future. Building that outcome is likely to begin in the countries nearest to the suffering.

That challenged is still being debated.

“Researchers have tried for decades to find a relevant legal status for people forced to flee their homes as a result of floods, droughts and storms – calamities which climate change promises to make more severe and commonplace – as well as appropriate laws which might ensure their protection. But climate migrants are sometimes forgotten among the various flows of people seeking asylum.

To protect climate migrants who were forced to leave their country, some legal scholars have proposed amending the definition of refugee in the Refugee Convention of 1951 to consider environmental degradation a form of persecution. This would expand eligibility for asylum as a refugee under international law beyond the existing grounds of persecution by religion, race, nationality, membership of a particular social group or political opinions.

But the principle of non-refoulement, mentioned in the refugee convention, already prohibits a host country of returning asylum seekers to somewhere they would not be safe. This could be interpreted as guaranteeing access to an environment offering decent air and clean water according to

the European Environment Agency.

Despite this provision, international law is failing to protect climate migrants, which means that the scope of the refugee convention, however broad, must be widened.

Ioane Teitiota is a citizen of Kiribati, an island nation in the central Pacific Ocean. In 2015, he was denied asylum in New Zealand after floods forced him to flee with his family. He protested to the UN Human Rights Committee, which ruled that his situation did not constitute an imminent risk to life.

The legal right of the people of Kiribati to seek effective protection from saltwater intruding into farmland, coastal erosion and crop failures as a result of sea-level rise does not exist. New Zealand maintained that it could only reward refugee status to people if the state had failed to respect their fundamental human rights. The effects of climate change are systemic, the argument goes, rather than a personal persecution against Teitiota himself.

Nevertheless, the Human Rights Committee said that people who fled their country because of the effects of climate change can argue that their experiences amount to persecution and seek refugee status under the refugee convention. Vulnerable people could also claim that climate change threatens their right to life under the International Covenant of Civil and Political Rights. This includes situations where environmental disasters are interlaced with conflict, leading to water or air being contaminated by chemical weapons.

States might consider asylum claims resulting from climate disasters in the future. But until consensus is reached among scholars or jurists about the legal status of climate migrants, they will probably avoid introducing a broad interpretation of what comprises a climate migrant into international law.

Environmental disasters are unpredictable and the damage they cause can blight a territory for years, taking decades for people to properly recover. The people displaced may need to seek shelter in another country or region while the reconstruction is underway.

Climate change will cause an increasing number of disasters such as floods, droughts and wildfires. Legal solutions, especially in the case of climate change disasters, will be difficult to predict in advance. A firm understanding of what works where climate migrants are forced to settle will be invaluable.

States neighbouring vulnerable countries are more likely to be affected by inflows of climate migrants. By shouldering a disproportionate share of this responsibility, these countries will keep the impasse over the legal status of climate migrants alive on the international stage and have an outsize role in constructing an international consensus around their legal status.

As these countries attempt to acquire funding and build shelters to house migrants, they’ll also be dealing with a rising number of asylum claims. This will inevitably prompt research within the country to determine the most relevant legal status climate migrants need to guarantee their protection. This could attract international recognition as climate change and the entwined refugee crisis escalate.

There was a dramatic spike in 2015 in the number of migrants fleeing war and famine, especially in countries such as Iraq, Syria and Eritrea and migration policy remains a very sensitive and divisive topic of debate as a result.

Preparing the efficient protection of climate refugees is a challenge for the years to come. But in the meantime, people need help. The recent earthquake in Turkey and Syria caused several thousand deaths, but may have left millions without homes.

Only the creation of an efficient international framework of laws can guarantee refuge for people fleeing such environmental disasters in future. Building that outcome is likely to begin in the countries nearest to the suffering.”

FINDINGS AND REASONS FOR DECISION

1. From the outset, the applicant was considered by the Tribunal to be a ‘witness of truth’ in all of the concerns she raised at the hearing concerning her application for Protection.

2. The Tribunal accepts that Vanuatu, the applicant country, has issues with ‘climate change’ in the form of ‘rising seas’ and increasing ‘volcanic activity’ as do other Melanesian and South Pacific nations. However, for the reasons that follow, the Tribunal did not accept the applicant’s particular concerns as raising a legitimate issue or issues for which attracted Australia’s protection obligations under the Act obligating Australia to provide her with protection in Australia. The Tribunal’s reasons and findings are as follows:

Natural Disasters

1. As the Tribunal indicated in paragraphs [30] to [35] above, to satisfy the criterion for a protection visa in section 36(2)(a) of the Act, the applicant must be a non-citizen in Australia in respect of whom a decision-maker (in this instance, the Tribunal) is satisfied Australia has protection obligations because the person is a refugee.

2. A ‘refugee’, as defined in section 5H(1) of the Act, is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality (in this instance, Vanuatu being the applicant’s country of nationality) or to return to their former country of former habitual residence due to a well-founded fear of persecution. As noted above, the meaning of ‘well-founded fear of persecution’ is set out in s.5J of the Act and includes a requirement in s.5J(1)(a) of the Act that the ‘person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.’

3. In this instance, the applicant’s claim is that she has or may experience harm as a result of natural disasters which constantly occur in her homeland, but this, in the opinion of Tribunal, does not relate to any of the reasons provided for in s. 5J(1)(a) of the Act and there is no evidence or information before the Tribunal to suggest that the applicant will be subject to harm on her return to Vanuatu for one or more of those reasons the specifically makes mention.

4. The Tribunal on the evidence before it is not satisfied that the applicant has a well-founded fear of persecution because she does not fear being persecuted for reasons of her religion, race, nationality, membership of a particular social group of (for her political opinion) as is required by s.5J(1)(a) of the Act.

5. Therefore, the Tribunal is not satisfied that the applicant is a refugee as defined in s.5H(1) of the Act.

6. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary Protection alternative considered

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection in s 36(2)(aa). The applicant in her evidence claimed she feared harm as a result of natural disasters occurring in her country, Vanuatu and she feared to return because of these natural disturbances which plague her country.

2. The applicant has not claimed that she will be arbitrarily deprived of her life, subjected to the death penalty or that she will be subjected to torture. There is no evidence before the Tribunal to indicate that the applicant would suffer any of these instances of ‘significant harm’ as provided for in s.36(2A) (a)-(c) of the Act if she was to return to Vanuatu in the reasonably foreseeable future.

3. The Tribunal also considered whether the harm feared (natural disasters) would constitute either of the forms of significant harm in s. 36(2A)(d)-(e) of the Act –‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in s.5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and to be intentional. The ordinary meaning of ‘intention’ implies a plan or aim, and the current case law has determined that intention requires the perpetrator to have an ‘actual subjective, state of mind.’

4. There is no information before the Tribunal to indicate that there will be a perpetrator of any harm to the applicant and no actual, subjective state of mind, meaning there will be no intention to inflict the required level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment).

5. For the above reasons, the Tribunal is not satisfied that the harm as a result of natural disasters as the applicant would face in Vanuatu as claimed would amount to ‘significant harm’ pursuant to s.36(2A) of the Act.

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

7. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Peter Vlahos Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H  Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a

well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of

serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)   any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

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